Civil sanctions - a more proportionate response to environmental offences?

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Since 2010, the Environment Agency (EA) has had the ability to impose ‘civil sanctions’ in lieu of criminal prosecution for certain environmental offences.

When an offence has been alleged by the EA it will investigate and invite representations from the alleged offender. At this stage the EA may offer, or those investigated may volunteer to agree to pay, a civil sanction in lieu of a prosecution.

In deciding whether a civil sanction is an appropriate and proportionate response to the offending, the EA will consider its four key enforcement objectives:

To stop illegal activity from occurring or continuing

To put right environmental harm or damage, also known as restoration or remediation

To bring illegal activity under regulatory control, and so in compliance with the law, and

To punish an offender and deter future offending by the offender and others.

The EA normally takes a pragmatic view to prosecution and will consider all other enforcement options before issuing a prosecution, considering prosecution as a last resort.

What is a civil sanction?

Where an offender accepts that they have breached environmental legislation they can try to reach an agreement with the EA to “promise” to put things right through a legally binding document know as an “enforcement undertaking”. In the right circumstances, the EA can also impose what are known as fixed or variable monetary penalties.

An enforcement undertaking can be offered proactively by the offender, but the EA will only consider accepting an enforcement undertaking where:

There has been a breach

There is confidence that the undertaking will be complied with

The offer is more than the offender saved by complying with the law

It is made in good faith

A commitment is given at the right level within the company to stop and prevent re-offending, and

Compensation to those affected and restitution is made.

As part of the enforcement undertaking the offender can make a payment to a charitable organisation that is connected with the offending. Often this is the payment of monies to an environmental charity, in an amount that is equivalent to or in excess of the money saved by the offender by its non-compliance with environmental legislation.

On 19 June 2019 the EA published an update of monies collected for charitable organisations by way of civil sanctions in the preceding 12 months, totalling approximately £3.7 million in contributions to over 40 charities.

Varying in payments from £450 by an individual who committed a waste offence to an average of £84,000. The largest payment in the EA’s most recent report (enforcement undertakings accepted by the EA between 20 October 2018 and 22 May 2019), was in the sum of £511,000 by United Utilities Water Limited for breaches of the Environmental Permitting (England and Wales) Regulations 2016. On 2 July 2019, the EA accepted a further separate enforcement undertaking from United Utilities Water Limited to pay £500,000 for an acidic pollution incident in the River Douglas at Horwich.

How does this compare to other regulators?

The EA is the only regulator that offers civil sanctions for the benefit of charity. This method of enforcement is one of the few that can truly be said to be restorative justice, as the charities that benefit from the payments under enforcement undertakings aid, support, and improve the environment.

Speculation often arises as to where the money paid in fines from environmental or health and safety prosecutions ends up. The reality is that it goes back to the government to use for a variety of governmental services and not direct to the EA or Health and Safety Executive as many believe it does.

The amount of money generated for charities through environmental undertakings provides scope to suggest that the EA’s model could also be used for health and safety cases. This could reduce lengthy and costly litigation and the monies could be put to better use, for example on improvements to safety education and supporting those injured at work.